DEC-E2013-142

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC – E2013-142

Mr O

(represented by MacSweeney Solicitors)

versus

An Industrial Waste Management Company

(represented by IBEC)

File reference: EE/2010/394

Date of issue: 12th November 2013

Keywords: Employment Equality Acts, Disability, Discriminatory Dismissal, Failure to provide reasonable accommodation, Neck injury

Dispute

1.1 The case concerns a claim by Mr O against a waste management company. His claim is that he was discriminatorily dismissed on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’]. He also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them.

1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st May 2010. On 5th December 2012 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 28th January 2013 as required by Section 79(1) of the Acts. The last piece of information requested by me was received on 25th October 2013.

Summary of the complainant’s case

2.1 The complainant was employed as a Service Operator with the Respondent – an Irish subsidiary of a multi-national waste management company specialising in the removal of industrial waste. It employs 1400 employees worldwide. A major medical device manufacturer outsourced their waste management to the respondent company and it was on this site that Mr O worked. He states that there were four full-time Service Operators and one relief operator (i.e. he covered holidays etc). He submits that duties were supposed to be rotated but, in reality, he did most of the heavy lifting. This is because the others were assigned to paper and cardboard disposal while he was assigned to chemical waste disposal. Mr O maintains that involved him manoeuvring a variety of 10l(itre) and 25l drums containing glycerine. These drums had to be lifted to shoulder height and decanted into bigger drums. During a manual handling training course, he asked for advice on lifting these and the trainer stated that 25l was too heavy to be lifting on a daily basis and it should be reduced. He submits that the respondent ignored this until after he injured his neck and his employment was terminated. Occasionally he had to move 200l drums. While he was supplied with a lifting device for this weight, he had to manoeuvre the drums out of a cabinet. One of the other service operators previously looked after the chemical waste. The complainant maintains that this man was transferred to paper duties following an injury and Mr O took over his duties. At various times Mr O stated that he requested that duties be rotated but this was not done.

2.2 While decanting a 25l drum of glycerine on 25th August 2008, Mr O submits that he sustained a serious neck injury. He subsequently went on sick leave (unpaid). This injury required a discectomy with a disc replacement in February 2009. In a letter to the respondent’s company doctor on 4th June 2009 his orthopaedic surgeon advised:

From talking to him [Mr O] I understand that his job does involve a lot of repetitive lifting activity of weights of at least 25kg at a time. Having listened to the process of the work involved I think that it is probably wise and feasible to review his work situation to try and reduce the degree of bending and lifting. Normally, in terms of bending and lifting the stress is borne in the spine by the lumbar spine rather than the neck itself but it in view of the fact that this man’s neck pain directly came on after the degree of lifting, it obviously has implications for him personally in the future. I think that in the vast majority of situations after surgery of this type I am normally happy to let a person return to their previous work, however, in [Mr O’s] specific case I think that the work situation needs to be looked at critically to try and address, as already stated in this letter, the degree of bending and lifting activity involved. It seems to me that through good work practice there should be modern mechanisms of reducing his degree of lifting activity and I think if this was addressed there would be much less concern about him being in his type of work.

2.3 Mr O siad he would be comfortable returning to work if he was given either the paper or cardboard duties. On 17th November 2009, the respondent’s Human Resources Manager wrote to him saying that their company doctor would be conducting a review of his role with a view as to whether he could return to work. The letter went on to say:

You should note that there is a possibility [respondent] may have to terminate your employment if [company doctor] finds that you cannot perform the duties of your role with reasonable adjustments and if [respondent] do not have any suitable alternative roles to offer you. This will of course be discussed with you and any suggestion you may have to facilitate your return to work would be taken into consideration before any decision would be made.

2.4 In the Company Doctor’s medical report of 12th January 2010 she said:

Based on this assessment and based on the risk assessment and on [Mr O’s] past history and recent surgery, I would be concerned with him return to this work situation unless necessary adjustments could be made to the amount of manual handling that would be required for him to fulfil his job a Toxic Waste Management Operative with [respondent].

As his job stands I feel he would not be suitable for this current role. I am unsure if deployment options are available for him within the company to a less manual job but am happy to discuss if required.

2.5 Mr O states that the respondent seemed to be under the misconception that he could not ‘lift a feather’. This was not the case. He submits he was anxious to get back to work. Otherwise he submits that he would have resigned following his operation. Mr O maintains that he is aware that the Service Operator is a manual handling role; he merely wanted not to be doing the less heavy lifting than before.

2.6 The respondent rejected his suggestions of appropriate measures to allow him to return to work – namely the use of an electric pallet truck and/or him being transferred to cardboard duties. Regarding the pallet truck the reason given for dismissing this suggestion is that it would not eliminate all manual handling. In relation to the cardboard duties the respondent stated that all operatives are required to cover each other’s reponsibilities in the case of holiday or sick leave. While the respondent acknowledged that the cardboard is not heavy the containers are deep and require a lot of bending to reach the cardboard. They also said it is not feasible to replace the containers with shallower or smaller containers. Mr O points out that NO medical professional said that he was unable to do manual lifting or bending. He points out that the respondent did not seek the advice of their company doctor, Mr O’s orthopaedic surgeon (who teaches same in the local University) or an independent Orthopaedic Consultant to advise on the range of duties Mr. O would be able to perform.

2.7 Mr O asserts that with the assistance of appropriate aids and a change in work practices (which he submits has changed anyway since the termination of his employment) he could have returned to work as a Service Operator. He submits that the respondent had no intention of allowing him back to work after he injured his neck in the workplace and were only going through the motions of a feeble consultation before getting rid of him.

2.8 Mr O submits that he should have been allowed to attend the on-site risk assessment which the Company Doctor conducted. He submits that in her report she flagged the possibility of redeployment but this was ignored by the company. He submits that it would not be a disproportionate burden in terms of cost to allow him to work on a part-time basis (at least on a trial basis) nor would the cost of an electric pallet be extortionate.

2.9 The complainant cites numerous other cases mainly A Heath and Fitness Club and A Worker[1], An Employer and A Worker[2] and Bus Éireann v Mr C[3].

2.10 His employment was formally terminated on 11th March 2010. He received nothing bar his Annual Leave which he had accrued i.e. he did not received redundancy or an ex-gratia payment for his service. Mr O is now 47 years of age and finds it difficult to find full-time work in the current economic climate as he is relatively unskilled. He submits that he had an exemplary disciplinary record with the respondent and should not have been let go in this manner. Subsequent to his employment being terminated by the respondent, he has worked part-time in a bar. He was excused from lifting heavy barrels there. He submits that if a small pub can provide reasonable accommodation, he fails to see how a multi-national enterprise cannot. He submits that he has always been a fit man – he used to play for Galway United. He has made a good recovery from his injury and swims in the sea every day. Therefore, he maintains that he is able to work. However, he seeks compensation rather than reinstatement because of the acrimony these legal proceedings have caused.

Summary of the respondent’s case

3.1 The respondent admits that Mr O’s neck injury is a disability within the meaning of these Acts. While the respondent is aware that the Equality Tribunal does not deal with personal injury claims, it denies any suggestion that it is responsible for Mr O’s injury. It also denies that it failed to endeavour to reasonably accomodate the complainant in his return to work. The respondent asserts it carried out an honest and through investigation into ways of retaining the complainant by exploring other methods of carrying out the specified roles. The respondent submits that this was done with the participation of the complainant.

3.2 Mr O made two suggestions regarding reasonable accommodation. The respondent made internal inquiries and the respondent’s Human Resources Manager responded:

a. electric pallet truck:- the Compliance Manager confirmed that same would minimise the effort in moving pallets and would be of benefit to someone with back problems. However, this would only solve one part of the manual labour issue – not possible to eliminate manual handling entirely, would require him to laod the pallet truck and drive it requiring manual handling. It would not help with the manoeuvring of any individual drums on a pallet should this be required.

b. cardboard only duties assessment of this was made internally and this not suitable as would require much manual handling to remove the cardboard from the storage container – containers are deep and require much bending. Not feasible to replace containers with shallow containers. Operatives are required to cover each other’s shifts in case of holidays or sick leave – need operatives to be in a position to lift heavier weights.

3.3 The respondent states that even the supervisor had to fill in occasionally. The respondent submits that the complainant sought redundancy if he was to be let go but that they were unwilling to facilitate this as his position was not being made redundant. They submit that the complainant was unwilling to consider alternative roles outside Galway. They also submit a letter from that the company with whom they had the waste contract which stated ‘I can confirm that having considered the above, it was not deemed economically for [company paying for the contract] to amend the contract between us and [respondent] to make provision for an increase in the headcount to facilitate Mr O working on duties which do not involve manual handling’.

3.4 The respondent submits that it complied fully with the two-step process in A Health Club and A Worker[4]. The respondent also cites A Government Department and An Employee (Ms B) where the Chairman of the Labour Court stated that ‘the scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances’[5]

Conclusions of the Equality Officer

4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was discriminatorily dismissed and whether the respondent failed to provide reasonable accommodation in order to enable him to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

4.3 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in terminating a person’s employment. Regarding this Section 16 (1) of the Acts states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….

(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(3) (a) For the purposes of this Act a person who has a disability

is fully competent to undertake, and fully capable of

undertaking, any duties if the person would be so fully

competent and capable on reasonable accommodation

(in this subsection referred to as ‘‘appropriate

measures’’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where

needed in a particular case, to enable a person who has

a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate

burden on the employer.

(c) In determining whether the measures would impose such

a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s

business, and

(iii) the possibility of obtaining public funding or other

assistance.

4.4 Both the complainant and the respondent have cited the seminal Labour Court case A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis]

4.5 Without doubt, this assessment is a time-consuming process for employers. The fact that Mr O also has a personal injuries case against the respondent adds an other nuance. The respondent in this instant case did more than the employer in A Health Club and A Worker. The reports of Mr O’s Orthopaedic Surgeon were made available to the respondent’s Occupational Health Physician. The complainant was allowed to make suggestions for reasonable accommodation and he was notified that they were considering terminating his employment. Mr O and his surgeon both agreed that he could not return to exactly the same duties in discarding chemical waste after his operation. The respondent conceded that the practice of decanting 25l drums has been discontinued. However, the complainant stated in direct evidence that he believed the respondent made an assumption that he could do no manual handling whatsoever and that it was merely going through the motions before discontinuing his employment. I agree with the complainant on this. The respondent was hasty in dismissing his suggestions for appropriate measures. As the LabourCourt has found in An Employer and A Worker the reasonable accommodation test is an objective one:

The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.[6] [my emphasis]

Mr O’s orthopaedic surgeon never said that Mr O could do no manual handling whatsoever. He was quite precise in his language. In his letter quoted in Paragraph 2.2, he said that ‘it seems to me that through good practices there should be modern mechanisms of reducing his degree of lifting activity and I think if this was addressed there would be much less concern about him being in his type of work’.[my emphasis] The surgeon clearly did not say that manual handling should be eliminated nor did he say Mr O was no longer suitable for this kind of work. The respondent’s Occupational Health Advisor (A General Practitioner with a Higher Diploma in Occupational Health) did not speak with Mr O’s surgeon nor did she seek a second opinion from an other orthopaedic consultant. Mr O was not invited to attend the on-site risk assessment where she examined the work practices.

4.6 The reasons, outlined by the respondent in Paragraph 3.2, for rejecting Mr O’s suggestions for reasonable accommodation do not pass the objective test outlined in An Employer and A worker. Regarding the provision of pallet truck the respondent said it was ‘not possible to eliminate manual handling entirely’. It is worth repeating that Mr O’s surgeon never recommended removing all manual handling functions. In relation to Mr O being assigned to the disposal of cardboard and paper only, the respondent said this role required much bending. From my reading of the surgeon’s report, he objected to heavy lifting rather than bending. However, the respondent did not check this with him or put either of the complainant’s suggestions for appropriate measures to him or to an independent consultant. The respondent also states that all service operatives need to be able cover all service operative’s roles. This is not strictly correct as the respondent does employ a relief worker and the supervisor covers shifts occasionally. Apart from that, the Labour Court have stated in An Employee and A Worker that the duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. I note that the respondent also rejected their own doctor’s suggestion of redeployment. It is also worth noting that the onus to provide reasonable accommodation is on the employer not the employee. The only suggestion that the respondent made was to offer Mr O a role in one of their other sites – the nearest one being 70 miles away. This would entail Mr O relocating away from the city where he all his life. This suggestion does not qualify as reasonable accommodation. He was not offered reduced hours, even on a trial basis, as recommended by the aforementioned Labour Court decision. It may have been the case that no matter what appropriate measures the respondent provided, the complainant may not have fully competent and fully capable of performing his former role. We will never know. Nevertheless, the respondent simply did not explore options thoroughly enough before terminating his employment to avail of the defence in Section 16(3).

Reasonable accommodation

4.7 Now I will turn to whether the costs of reasonable accommodation would impose a disproportionate burden on the respondent. The respondent stated that the company for whom they disposed waste refused to pay for the cost of employing an other person so that Mr O could be assigned to duties which do not involve manual handling. Again this trope of eliminating manual handling is brought up. It is axiomatic that waste disposal is a manual role. As stated earlier Mr O was not seeking that he be excused from all lifting and bending. I am satisfied that his suggestions of the provision of an electric pallet truck would not place a disproportionate cost on the employer which is a multi-national enterprise. Nor am I satisfied that he being assigned to paper and cardboard duties would require the employment of an extra person.

4.8 To reiterate, the respondent was not pro-active in exploring appropriate measures to accommodate Mr O’s return to work. Therefore, it cannot avail of the defence in Section 16. Neither am I satisfied that the suggestions by Mr O for reasonable accommodation would have placed a disproportionate financial burden on the respondent.

4.9 In considering redress, I am cognisant that the respondent did not dismiss Mr O without making some attempts to comply with Section 16 of the Acts. However, I also have to bear in mind that the respondent is a multi-national enterprise with significant resources and it did not explore options to continue to employ Mr O thoroughly enough. Unilaterally terminating his employment has negative consequences for a person of 47 especially when, by his own admission, he is relatively unskilled and therefore had limited potential of obtaining full-time employment.

Decision

I have concluded my investigation of Mr O’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent has discriminatorily dismissed the complainant on the ground of disability

(ii) the respondent hasfailed to provide appropriate measures that would allow the complainant to continue to be employed by them

Therefore, I find for the complainant.

In accordance with Section 82 of the Act, I order the respondent:

(a) pay the complainant €38,000 (the equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts only. The award is redress for the infringement of Mr O’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how people with disabilities are treated.

______________

Orlaith Mannion

Equality Officer

 

[1] EED037

[2] EDA0413

[3] EDA08111

[4] Previously cited

[5] EDA061

[6] EDA0413